DOJ concerns prompt NCAA’s Mark Emmert to push for voting delay on rules for athlete transfers and name, image, likeness

NCAA President Mark Emmert on Saturday said in a letter to the Justice Department’s antitrust division leader that he has “strongly recommended” to association governing groups that they delay votes scheduled for this week on proposed changes to rules regarding athletes’ ability to transfer and to make money from the use of their names, images and likenesses.

Emmert’s letter was in response to a letter sent to him Friday by Assistant Attorney General Makan Delrahim. In that correspondence – first reported by USA TODAY Sports — Delrahim expressed strong concerns about the association’s direction on the transfer and name, image and likeness (NIL) issues.

Proposed changes in both areas have been scheduled to be on the agenda of Monday’s meeting of the Division I Council and Thursday’s meeting of the Division I Board of Directors. But Delrahim said in his letter that one part of the NCAA’s prospective approach to regulating athletes’ involvement in NIL deals “may raise concerns under the antitrust laws.” Delrahim also raised concerns about aspects of the NCAA’s existing transfer rules that are not being addressed by the proposed rules changes that have been up for consideration this week.

NCAA president Mark Emmert responded to the Justice Department on Saturday. (Photo: Robert Deutsch-USA TODAY Sports)

Emmert’s response was first reported on by The New York Times, and a copy of his letter subsequently was obtained by USA TODAY Sports.

After thanking Delrahim for his letter and saying the NCAA appreciates the Justice Department's interest, Emmert wrote:

“The NCAA and its member schools are committed to ensuring that NCAA rules comply with all applicable laws, including federal antitrust law. We believe, as courts have regularly held, that our current amateurism and other rules are indeed fully compliant. Whenever we consider revisions to the rules, however, we of course receive input from many interested parties, and we welcome your invitation to consult with the Department so that we can hear and fully understand its views as well.

“I have strongly recommended to the NCAA governing bodies that it delay the upcoming votes on the issues you describe and Donald Remy, the NCAA’s Chief Operating Officer and Chief Legal Officer, has contacted your office to schedule a mutually convenient time to meet with you and your staff.”    

Even before Delrahim’s letter to the NCAA, there had been growing sentiment within the association’s membership that the vote on the NIL rules changes should be delayed. On Thursday night, USA TODAY Sports and the Sports Business Journal reported on these developments, which were being driven by three primary considerations:

►The Supreme Court’s decision last month to hear the NCAA’s appeal of a 9th U.S. Circuit Court of Appeals ruling that the NCAA cannot limit benefits related to education that college athletes can receive. 

►Uncertainty about what kind of bill Congress might vote on to regulate name, image and likeness issues, the scope of which could change given the results of the runoff elections in Georgia on Tuesday that will flip the Senate from Republican to Democratic control this session. 

►A lack of detail given to NCAA membership about how a third-party clearinghouse would function to vet name, image and likeness deals signed by athletes to ensure they are not de facto recruiting inducements.

On Saturday, before Emmert’s letter surfaced, North Carolina athletics director Bubba Cunningham reinforced those thoughts.

“I think what’s happening nationally with the Supreme Court, with Congress, all of those are related,” Cunningham told USA TODAY Sports. “It forces somewhat of an alignment or forces a discussion about how we’re going to move forward, because we all want to continue to offer sports. How are we going to organize ourselves and financially, how are we going to fund the individual sports and what will be the opportunities for the schools and the students? Those are the choices we all have to make. 

“Given that reality, it probably makes sense to pause where we are, start with the highest authority — the Supreme Court — and work your way back toward more local decision-making.

“But I understand that you said you’re going to do something. To pause? Well, we’ve all been on pause through the pandemic so pausing on this decision, in my view, doesn’t seem to be unpalatable. I think that’s something that would be very appropriate right now.”

A decision to delay the votes scheduled for this week would occur against the backdrop of continuing moves by state legislators to enhance NIL opportunities for college athletes. Six states, including California and Florida, have passed NIL laws, and a bill has been introduced for consideration in the upcoming Texas legislative session. Florida’s law is set to take effect July 1.

On Saturday, the primary architect of the Florida law — State Rep. Chip LaMarca — said other states should keep pressing ahead on the NIL.  

“Allowing collegiate athletes to enter the free market clearly does not fit the NCAA business model,” he said in a statement to USA TODAY Sports. “If it did, the NCAA would have evolved years ago. Collegiate athletes cannot wait on congressional intervention or NCAA inaction any longer. I strongly urge all state legislatures to act now and follow Florida's lead if they have not done so already.”

Delrahim’s letter to Emmert addressed the NIL clearinghouse issue generally, saying: “For example, if the NCAA adopted a rule that fixes the price at which students can license their NIL, e.g., based on what the NCAA determines to be a ‘fair’ market value, such a rule may raise concerns under the antitrust laws.” 

In an interview with USA TODAY Sports, Delrahim addressed the clearinghouse more directly.

“The devil will be in the details – who's on that board and who they answer to … because who appoints them and what their points of view are can be outcome-determinative,” he said. “While we applaud efforts to increase integrity in the process, we must be very careful to ensure that a board does not operate as a backdoor way to limit competition. You know, athletic directors' and coaches' salaries are not subjected to such a process. We want to ensure that the NCAA imposes only the narrowest form of competitive restriction that is necessary.”

Contributing: Dan Wolken

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